Free for a Fee

By Eric Goldman

CJ Products LLC v. Snuggly Plushez LLC, 2011 WL 3667750 (E.D.N.Y. Aug. 22, 2011)

Pillow Pets are cuddly and soft, but if you make knockoff versions of them, be prepared to meet the sharp end of their sword in court–a fate that befell the defendants in this case. However, before we condemn the defendants too much, recognize that (a) the term “pillow pets” is very descriptive (“It’s a pillow…it’s a pet”), and (b) the idea of making stuffed animals that turn into pillows goes back at least decades.

Nevertheless, the court concludes that the defendants mimicry was too close. It violated Pillow Pets’ copyright registration in sculptural works, and the marketing campaign constituted false advertising (for, among other things, saying “As Seen on TV” and claiming to be “original” and “authentic”) and trademark infringement. To reach the latter conclusion, the court concluded that “pillow pets” was a descriptive term that had achieved secondary meaning.

Unusually, this ruling broke out its discussion of the trademark implications of the defendants’ keyword ad campaign (rather than incorporating the discussion into the other trademark infringement analysis).

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